The U.S. District Court for the SD of GA granted Ms. Rishmawy’s petition for the return of her daughter to Honduras under the Hague Child Abduction Convention. The parties had separated just prior to the minor child’s birth. The child lived with her mother in Honduras, while Mr. Vergara lived in a variety of other locations, including Guatemala, Jamaica, and his home country of Spain. The parties negotiated a settlement agreement, and filed it in the Honduran court in early 2020, that gave the father visitation with the child. The Honduran court scheduled a hearing to ratify the agreement in June 2020, but the courts closed due to COVID. In July 2020, Ms. Rishmawy became concerned about her safety in Honduras after she lost some private documents containing personal information after leaving them in a car that she sold and which was subsequently stolen. At that time, the parties’ future plans for where their daughter would reside diverged. Ms. Rishmawy believed that the parties made an agreement that she and the child would move to Spain. Mr. Vergara testified that the parties made an agreement that Ms. Rishmawy would move to Spain and he and their daughter would move to the United States, so he could obtain permanent residency for the child. He had already taken certain steps to obtain an L-2 visa and a social security number for the child. Mr. Vergara brought the child to the United States during his scheduled summer vacation time, and the parties had significant WhatsApp exchanges, trying to resolve when the minor child would be returned to the Mother, and whether the child would be returned to Honduras or to Spain. It eventually became clear after about 3 months of the child being with Mr. Vergara, that he was not going to return her. Ms. Rishmawy filed a Hague Abduction return petition against Mr. Vergara and his girlfriend, seeking the child’s return to Honduras.
Mr. Vergara argued that Honduras had been abandoned as the child’s habitual residence when Ms. Rishmawy moved to Spain. However, the court found that her move to Spain was conditioned on the minor child living with her, and that she had subsequently returned to Honduras, and said she does not intend to move back to Spain. The only clear shared intent between the parents as to their child’s residency was their early 2020 residency agreement, still in limbo in the Honduran courts. Furthermore, Mr. Vergara’s words and actions coerced Ms. Rishmawy to move to Spain, where he then pulled a “bait and switch” by taking their daughter to the United States, where Ms. Rishmawy could not legally travel. The child had not been in the United States long enough to acclimatize, particularly in that Mr. Vergara had moved her from Miami to Savannah, Georgia.
In this particular case, if you read the court’s opinion, you will see that the court relied heavily on its own credibility assessment, and a large portion of the evidence that helped guide the court were volumes of WhatsApp messages and emails between the mother and father, and, at times, including the father’s lawyer(s).